govinfo:USCOURTS-pawd-2_18-mc-01001-13

IN THE UNITED STATES DISTRICT COURT 
FOR THE WESTERN DISTRICT OF PENNSYLVANIA 
 
 
IN RE: DIISOCYANATES               ) Master Docket Misc. No. 18-1001     
ANTITRUST LITIGATION    )      
       ) MDL No. 2862   
This Document Relates to:    ) 
All Cases      ) 
 
AMBROSE, United States Senior District Judge 
 
 
OPINION  
AND  
ORDER OF COURT 
 
 
This multi- district litigation stems from an alleged conspiracy to reduce supply and 
increase price for methylene diphenyl diisocyanate (“MDI”) and toluene diisocyanate (“TDI”), 
precursor ingredients for the manufacture of polyurethane foam and thermoplastic polyurethanes.  
Plaintiffs filed a Motion to Compel Defendant s to Use Certain Search Terms and Technology 
Assisted Review (“TAR’) Methodologies.  (ECF No. 455).   In opposition, Defendants filed a Joint 
Motion for Protective Order Regarding Certain Search Terms and TAR Methodologies.  (ECF No. 
470).  Given the technical nature of the Motions, the parties agreed to the appointment of a special 
master.  On May 7, 2021, I appointed Special Master James C. Francis IV to submit a report and 
recommendation regarding the same.  After reviewing briefs, lengthy submissions, holding 
multiple meetings , and a hearing, the Special Master issued a Report and Recommendation 
(“R&R”) on August 23, 2021.  (ECF No. 529).   Therein, the Special Master recommended that 
Plaintiffs’ Motion to Compel (ECF No. 455) be denied and that Defendants’ Motion for Protective 
Order (ECF No. 470) be denied.  Id. 
Plaintiffs filed Objections to the Special Master’s R&R (sealed at ECF Nos. 533 and 539 
and errata at No. 535).  To that end, “Plaintiffs do not object to Judge Francis’s reasoning in the 
Report, only to his conclusion that Plaintiff’s’ Motion should be denied.”    In essence, Plaintiffs 
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request this Court to adopt Plaintiffs’ TAR methodologies and search terms or order Defendant to 
produce all documents hit by Plaintiff’s search terms.  
Defendants filed a Response to the Special Master’s R&R. (ECF No. 532).  Defendants 
state that they do not object to the R&R.  To that end, Defendants will “modify their TAR 
procedures to fully address the two steps that Judge Francis flagged and to conform to Judge 
Francis’ R&R.”  In particular, they are willing to adopting the proposal suggested by the Special 
Master at a mediation session, which address the issues flagged in the R&R, and provide further 
details of how they intend to implement the same.  See, ECF No. 532-6. Since they no longer 
seek to use the specific TAR procedures set forth in their Motion for Protective Order, they submit 
that their Motion (ECF No. 470) is now moot.    
I have reviewed all related documents.  After careful consideration and for the reasons set 
forth in the R&R, I am persuaded by the Special Master’s R&R. It is well-reasoned and provides 
Defendants with a roadmap highlighting the potholes in Defendants’ prior positions and how to 
proceed to achieve reasonable and proportionate  search terms and TAR methodologies.  
Defendants are not compelled to adopt the Pl aintiffs’ search terms or TAR methodologies and   
Plaintiffs’ objections are overruled.   
Defendants are to proceed as they have outlined in their submissions forthwith .  
Importantly, once Defendants reach a point where they believe their search is complete, they shall 
provide to Plaintiffs (a) the Bates number of all relevant documents obtained from the last two 
batches searched, identify which of the batches these documents were found in, and identify the 
number of relevant but privileged documents  withheld with respect to each of the two batches; 
and (b) the recall rate and all calculations  used to derive that rate.  If Plaintiffs agree, the n 
Defendants may conclude their search.  If Plaintiffs do not agree, the parties shall, after meeting 
and conferring, present their dispute to the Court for resolution by the Special Master. 
 
 
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THEREFORE, this 21st day of September, 2021, it is ordered as follows: 
1. The Special Master’s Report and Recommendation (ECF No. 529) is hereby 
adopted in its entirety as the opinion of this Court; 
2. Plaintiffs’ Objections to the Special Master’s Report and Recommendation (sealed 
at ECF Nos. 533 and 539 and errata at No. 535) are overruled;  
3. Plaintiffs’ Motion to Compel Defendants to Use Certain Search Terms  and TAR 
Methodologies  (ECF No. 455) is denied;  
4. Defendants’ Joint Motion for Protective Order Regarding Certain Search Terms 
and TAR Methodologies  (ECF No. 470) is denied as moot; and  
5.   Defendants are to proceed, forthwith, as they have outlined in their submissions.  
Importantly, once Defendants reach a point where they believe their search is complete, they shall 
provide to Plaintiffs the following: (a) the Bates number of all relevant documents obtained from 
the last two batches searched, identify which of the batches these documents were found in, and 
identify the number of relevant but privileged documents withheld with respect to each of the two 
batches; and (b) the recall rate and all calculation used to derive that rate.  If Plaintiffs agree, then 
Defendants may conclude their search.  If Plaintiffs do not agree, the parties shall, after meeting 
and conferring, present their dispute to the Court for resolution by the Special Master.   
 
BY THE COURT: 
 
 
 
  
      Donetta W. Ambrose 
      United States Senior District Judge 
 
  
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